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Wednesday, March 19, 2014

CCA to Greg Abbott: Shut up and go away

After Attorney General Greg Abbott asked the Court of Criminal Appeals to grant re-hearing on their 9-0 decision to invalidate Texas online solicitation of a minor statute as unconstitutional, the CCA today in another unanimous ruling not only told him "no" but expressly limited his authority, striking down a 2011 statute on which he based his post hoc intervention. Rather than reinvent the wheel, here's how Chuck Lindell at the Austin Statesman described this latest development:

The state’s highest criminal court Wednesday declined Attorney
General Greg Abbott’s request to reconsider an October ruling that
invalidated a law banning sexually explicit cyberchats between adults
and minors — and acted instead to limit the power of Abbott’s office.

Abbott
had argued that the court’s ruling on the “sexting law” was invalid
because his office hadn’t been notified, as required by state law, that
the statute had been challenged as unconstitutional. The oversight
deprived his office of an opportunity to defend the sexting law, Abbott
argued.

But in a unanimous, unsigned opinion released Wednesday,
the court threw out the notification law, saying it violated the
separation of powers between the legislative and judicial branches of
government as required by the Texas Constitution.

The Legislature exerted “undue interference” on courts when it enacted the law in 2011, the opinion said.

According
to the notification law, when a court finds a statute unconstitutional,
it cannot enter a final judgment until the attorney general is notified
and 45 days have passed.

Entering final judgments, however, is a
core judicial function that “falls within that realm of judicial
proceedings so vital to the efficient functioning of a court as to be
beyond legislative power,” the Court of Criminal Appeals ruled.

The 2011 law insisted that the AG be provided notice whenever the constitutionality of a law was challenged. A footnote to the main opinion striking down the notification provision held that the "directive to notify the attorney general of every constitutional
challenge to a state statute made by a party imposes a duty that is wholly unrelated to the Court's
judicial powers and functions. Pursuant to this unusual provision, the legislature would have this
Court exercise a function that is not only non-judicial but would operate solely for the apparent
benefit of the attorney general. And to what extent the attorney general would benefit from
receiving such a notice is elusive, given that the attorney general has no authority to appear in
criminal cases before this Court."

Ouch! That's gonna leave a mark.

Rubbing salt in the wound, Presiding Judge Sharon Keller offered a concurrence
pointing out that the AG's office has web access and should have known
about the case as it was happening just like every other attorney in the
state. Wrote Keller, "the notification statute applies not just to this
Court, but to all courts. I do not
know what burden the statute would place on trial courts and courts of
appeals, but, during the last
fiscal year, this Court disposed of well over nine thousand matters.
Many of the pleadings before
our Court claim that a statute violates the constitution. I agree with
the Court that subsection (a),
which requires courts to serve the Attorney General with notice and a
copy of the relevant pleadings
in all of these cases, also violates the Texas Constitution because it
imposes a duty that falls outside
of any judicial function of this Court."

MORE: From Mark Bennett, who argued the case before the CCA. In the comments to Mark's post, Alex Bunin from the Harris County Public Defender's Office noted wryly, "The State needs to stop filing stuff before something else they like gets struck down."

3 comments:

In the early 1990s, I represented the real party in interest in Collins v. Kegans, a mandamus at the crim apps. The AG claimed that because no notice was given to him under a predecessor statute in the civil practice & remedies code Judge Kegans did not have the authority to declare a statute unconstitutional.The Court of Criminal Appeals had no problem dismissing that claim in a foot note. Or, as I argued, Johnny Holmes represented the state in criminal cases in Harris County and if he needed help, he knew the AG's phone number.

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